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Definitions of Law and Empirical Questions

Published online by Cambridge University Press:  01 July 2024

Jack P. Gibbs
Jack P. Gibbs*
Affiliation:
The University of Texas at Austin
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Two fundamental questions for any discipline are: (1) What is the subject matter of the field? and (2) What is to be asked about the subject matter? The answer to the first question as it applies to jurisprudence can be given in a word—law. This designation may appear as a gross oversimplification, but that is not the problem at all. If there were consensus in jurisprudence as to a universal and empirically applicable definition of law, the term would be suited admirably for identifying the subject matter of the field. But such consensus is lacking. Debates over conceptions of law have an ancient history, and since the end of the eighteenth century they have become more intense. Given the fact that contemporary schools of thought in jurisprudence are distinguished first and foremost by the kind of definition of law advocated, it is difficult to understand Selznick's assertion that definitions of law “are not really so various as is sometimes suggested.” To the contrary, one would be hard pressed to identify a more controversial issue in either jurisprudence or the sociology of law.

Type
Research Article
Information
Law & Society Review , Volume 2 , Issue 3 , May 1968 , pp. 429 - 446
Copyright
Copyright © 1968 by the Law and Society Association.

References

1. See H. Kantorowicz, The Definition of Law (1958).

2. P. Selznick, Sociology and Natural Law, 6 Natural L. F. 94 (1961).

3. H. Kelsen, General Theory of Law and State (Anders Wedberg transl. 1954).

4. Max Weber on Law in Economy and Society 5 (M. Rheinstein ed. 1954).

5. E. A. Hoebel, The Law of Primitive Man 28 (1954).

6. Kelsen, supra note 3, at 61.

7. Id. at 45.

8. The emphasis on actual behavior is much in keeping with Justice Holmes's statement that law is a prophecy as to what courts will do. However, the “legal realists” in American jurisprudence are in error when they construe Holmes's statement as entirely consistent with the realists' principle that law is nothing more than the decisions of particular judges, a principle that is alien to analytical jurisprudence. Actually, Holmes's statement is highly ambiguous. Neither Holmes nor anyone else would argue that a prophecy by a janitor as to what a court will do is just as much a law as a prophecy by a district attorney. Further, the very notion of a prophecy in this context implies recognition of some degree of regularity in judicial decisions and it is this regularity that constitutes law. For details concerning the debate between the legal realists and analytical jurisprudents, see The Nature of Law: Readings in Legal Philosophy (M. P. Goldinged. 1966).

9. The most questionable aspect of Kelsen's scheme is that he does not provide an empirically applicable criterion for the identification of “ought” as a legal element. The word may not appear in a code; consequently, it can only be imputed to laws by equating “oughtness” with sanctions. But unless sanctions are administered with some degree of regularity, it is difficult to see how they can be equated with the “ought” of conduct. On the other hand, if such regularity is recognized as crucial, then Kelsen's conception of law is “behavioral,” despite his disclaimer. Kelsen's attempt to divorce his conception of law from actual behavior is made all the more questionable by his admission that the “validity” of a particular law depends on the efficacy of the legal system as a whole, meaning regularity in enforcement and/or conformity to laws, either of which is clearly “behavioral.”

10. H. L. A. Hart, The Concept of Law (1961).

11. Although Hart provides an excellent summary of objections to coercive definitions, it should be noted that his criticism is not peculiar to jurisprudence. On the whole, sociologists of law have been as vociferous in their objections to this perspective as have the advocates of natural law theory in jurisprudence. See, e.g., E. Ehrlich, Fundamental Principles of the Sociology of Law (E. Moll transl. 1936). Yet, as we have seen, Weber's conception of law is definitely coercive.

12. Hart, supra note 10, at 38.

13. See J. H. Wigmore, A Panorama of the World's Legal Systems (2 vols. 1928); Hoebel, supra note 5; A. S. Diamond, Primitive Law (2d ed. 1960) ; and R. D. Schwartz & J. C. Miller, Legal Evolution and Societal Complexity, 70 Am. J. Sociology 159-69 (1964).

14. Hart, supra note 10, at 88.

15. J. Austin, The Province of Jurisprudence Determined (1832).

16. The conventional Western view of authority is ethnocentric in that it focuses on “officials,” meaning statuses that are defined exclusively in terms of enacting and/or enforcing laws (e.g., legislators, police officers, district attorneys). But in some non-Western societies, essentially the same functions may be attached to statuses or social divisions that have other roles also. See Hoebel, supra note 5.

17. Hart, supra note 10, at 77.

18. Id. at 77.

19. Id. at 41-42.

20. Id. at 27.

21. See Kelsen, supra note 3.

22. Hart, supra note 10, at 35-36. This is one of a few instances where Hart recognizes that criticisms of Austin's scheme do not necessarily apply to contemporary coercive definitions of law, Kelsen's perspective in particular.

23. Id. at 40-41.

24. See in particular, E. E. Evans-Pritchard, The Nuer (1940) ; The Eskimo: Rudimentary Law in a Primitive Anarchy, in Hoebel, supra note 5, at ch. 5; R. F. Barton, Ifugao Law, 15, No. 1: University of California Publications in American Archaeolocy and Ethnolocy (Feb. 1919); and Hoebel, The Political Organization and Law-Ways of the Comanche Indians (American Anthropological Association, Memoirs, No. 54, 1940).

25. For evidence of an evolutionary trend in the characteristics of statuses related to reaction to deviant behavior, see Schwartz & Miller, supra note 13. This is one of the few studies in recent years that is in keeping with the early tradition of the sociology of law (i.e., a comparative focus).

26. The Nuer, Ifugao, Eskimo, and Comanches are cases in point. See supra note 24 for references.

27. L. L. Fuller, The Morality of Law (1964).

28. Fuller defines law as “the enterprise of subjecting human conduct to the governance of rules,” but he does not state the relation between this definition and his eight “desiderata.” Some relation is suggested, however, by his rejection of the idea that the “law of Nazi Germany was as much law as that of any other nation” (id. at 107, 123). The idea is rejected, evidently, not because the Nazis failed to engage in Fuller's “enterprise” but because their “laws” were not characterized by one or more of the eight desiderata. Conceivably, then, Fuller regards his desiderata as not just qualities but criteria of law. In any event, as for his definition of law, at no point does Fuller define “rules” or stipulate the fundamental distinction between laws and other types of rules.

29. In all fairness it should be noted that Kelsen (supra note 3) has contributed to the misuse of the term “theory.” He never recognized that analytical jurisprudence is primarily a conceptual scheme and not a substantive theory which generates empirical propositions about law. On the whole, Kelsen and members of the analytical school have been as insensitive to empirical questions about law as have their critics.